“... the separation of powers is implicit in the design of our constitution [the Basic Law]. As in the United States, 'The principle of the separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document ...' "
The powers and functions of the three branches are stipulated in chapter IV of the Basic Law, including the power to monitor and restrict the other branches, which is the system we called ‘checks and balances’.
For instances, between the executive power (Chief Executive) and the legislative power (LegCo), it is suggested that the Chief Executive shall be responsible for the implementation of Basic Law and other laws which, in accordance with the Basic Law, apply in the HKSAR. On the other hand, a bill passed by the LegCo may take effect only after it is signed and promulgated by the Chief Executive. This formulates a checking system on the LegCo system that the work of LegCo will come into effect only with the written consent of the chief Executive. Meanwhile, if the Chief Executive considers that a bill passed by the LegCo is not compatible with the overall interests of the Region, he or she may return it to the LegCo within three months for reconsideration. If the LegCo passes the original bill again by not less than a two-thirds majority of all the members, the Chief Executive must sign and promulgate it within one month, or act in accordance with the provisions of Article 50 of this Law. If the Chief Executive refuses to sign a bill passed the second time by the LegCo, or the LegCo refuses to pass a budget or any other important bill introduced by the government, and if consensus still cannot be reached after consultations, the Chief Executive may dissolve the LegCo. It gives the executive power the ability to check on the legislative power, but on the other hand there is also provision that works in an opposite way. The Chief Executive may dissolve the LegCo only once in each term of his or her office. Also The Chief Executive must resign under any of the following circumstances:
When, after the LegCo is dissolved because he or she twice refuses to sign a bill passed by it, the new LegCo again passes by a two-thirds majority of all the members the original bill in dispute, but he or she still refuses to sign it.
When, after the LegCo is dissolved because it refuses to pass a budget or any other important bill, the new LegCo still refuses to pass the original bill in dispute.
Moreover, If a motion initiated jointly by one-fourth of all the members of the LegCo charges the CE with serious breach of law or dereliction of duty and if he or she refuses to resign, the Council may, after passing a motion for investigation, give a mandate to the Chief Justice of the CFA to form and chair an independent investigation committee. The committee shall be responsible for carrying out the investigation and reporting its findings to the Council. If the committee considers the evidence sufficient to substantiate such charges, the Council may pass a motion of impeachment by a two-thirds majority of all its members and report it to the CPG for decision.
In between Chief Executive and the courts, there are also established checks and balances. It is suggested judges of the courts of the HKSAR shall be appointed by the CE on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors. The Chief Justice of the CFA of the HKSAR may be investigated only for inability to discharge his or her duties, or for misbehavior, by a tribunal appointed by the CE and consisting of not fewer than five local judges and may be removed by the CE on the recommendation of the tribunal and in accordance with the procedures prescribed in this Law. The above two provisions gives Chief Executive the power to check on the courts, meanwhile there is case law that support the power of the courts. In Ng Ka-ling, Li CJ reinstated the constitutional jurisdiction of the Hong Kong courts under Article 19(1) and Article 80 of the Basic Law in the following terms:
“In exercising their judicial power conferred by the Basic Law (under Article 19), the courts of the Region have a duty to enforce and interpret that law. They undoubtedly have the jurisdiction to examine whether …the legislature of the Region or acts of the executive authorities … are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid. The exercise of this jurisdiction is a matter of obligation, not of discretion …”
“it is right that we should take this opportunity of stating it unequivocally…In exercising this jurisdiction, the courts perform their constitutional role under the Basic Law of acting as a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law.”
The courts were clarified to have power to examine both the existence and validity of legislative and executive acts.
Furthermore, in Cheng Kar Shun v Li Fung-ying the court held that article 73 of the Basic Law provided the LegCo with the power to summon when sitting as a full body or functioning through a Select Committee. The court further suggested that Basic Law recognized LegCo to be a sovereign body and it had exclusive control over the conduct of its own affairs. Hence, the courts did not, as a rule, interfere with the internal workings of the Legislature. Exceptionally, where questions of whether the Legislative Council, in going about its business, had acted in contravention of the Basic Law arose, the courts had jurisdiction to intervene. The case clearly affirmed the independence between LegCo and the courts so as the balance of powers between the two.
To conclude, it is to me a very well-established check and balances system among the executive, legislative and judiciary powers in Hong Kong. There are numerous provisions in the Basic Law as the supreme constitution to ensure the independence of those powers meanwhile gave each of them the power to check if others contravene the principle as described above. There are also cases established affirming that the empowered bodies cannot act beyond their power. Separation of powers is said to be an underlying principle reflected in Basic Law and the powers are well-balanced.
Law Lectures for Practitioners 1998, 187
Ng Ka Ling v Director of Immigration [1999] 1 HKC, P.332-333